Application No: Y15/0627/SH

Location of Site: Sainsburys 19 Military Road Hythe Kent

Development: Change of use of land and erection of petrol filling station.

Applicant: Sainsbury's Supermarkets Ltd33 HolbornLondonEC1N 2HT

Agent: Mr G MorrisWYGRopemaker Court11-12 Lower Park RowBristolBristol, City OfBS1 5BN

Date Valid: 07.07.15

Expiry Date: 01.09.15

Date of Committee: 08.3.16

Officer Contact: Mrs Wendy Simpson

RECOMMENDATION: That planning permission be refused for the reasons set out at the end of the report.

1.0 THE PROPOSAL

1.1 This application is for the change of use of part of the car park of the Sainsbury’s supermarket store and the construction of a petrol filling station.

1.2 Within the existing car park the petrol filling station would occupy an area adjacent to the western boundary of the car park and would result in the loss of 41 car parking spaces. The petrol filling station would have 3 double-sided pumps under a 4.5m high canopy (depth of 0.5m) and with a service kiosk and air/water pump, situated at the northern end of the site. Whilst the submitted plans include details of signage this is indicative only and does not form part of the application, requiring separate advertisement consent.

1.3 The access and exit to and from the petrol filling station would be off/onto the internal circulation road of the existing supermarket car park from Military Road, with the requirement for filling vehicles to use the wider store car park to exit the site in a forward gear.

1.4 The opening hours for the petrol filling station are proposed to be the same as the opening hours for the supermarket on the site – 08.00 to 22.00 hours Monday to Saturday, with hours of 09.30 to 16.30 for Sundays and Public Holidays. Due to the risk of conflict between users of the store and fuel

delivery vehicles the applicant has proposed that deliveries for the Petrol Filling Station would be when the store was closed and having allowed 15 minutes for the last customer to have left the site by car. Deliveries have therefore been requested as between 06.30- 07.45 hours and 22.15 - 23.00 hours Monday to Saturday and 08.00 - 09.15 hours and 16.45 -18.00 on Sundays and Public Holidays. The applicant advises it is expected that there be no more than 3 deliveries per week, with each delivery taking about 30-40 minutes.

1.5 In terms of external forecourt lighting a report has been submitted to show the proposed lighting scheme, illumination levels and light spillage and it is advised that the lights will be dimmed if there are no customers for 5 minutes and they will be turned off when the petrol filling station is closed, however it is assumed lighting will be required for deliveries.

1.6 In support of the application the following reports have been submitted: Forecourt lighting; Noise assessment; Parking survey; Tanker tracking routes; Phase 1 Geo-Environmental Desk Study; Fuel storage feasibility assessment; Archaeology desk-based assessment.

2.0 LOCATION AND DESCRIPTION OF SITE

2.1 The site is within the car park of the existing Sainsbury’s supermarket with access off Military Road. Military Road (the A259) forms the primary vehicular access route for traffic heading through Hythe to the east towards Folkestone and is a one-way street. The proposed PFS is set approximately 60 metres back in to the site, away from the A259 street frontage.

2.2 The site is located upon a hillside, with the supermarket car park set approximately 3 metres above the level of Military Road. To the rear of the supermarket car park in a large retaining wall and beyond the retaining wall the levels rise steeply, with significant vegetation separating Sir John Moore Avenue to the north.

2.3 To the west of the car park, adjacent to the site of the proposed petrol filling station, is an area of two storey flat blocks with some bungalows, accessed via the quiet residential street of Sir John Moore Avenue. The flats immediately to the west of the petrol filling station site are located at a similar ground level to the application site and the closest flats are located approximately 8-9 metres from the site boundary. There are a number of trees of a significant scale adjacent to the boundary of the site, providing screening of the existing superstore car park from the flats and road. Following the submission of the application a Tree Preservation Order has been made to ensure these important trees are retained.

2.4 The application site falls outside of the Hythe High Street and Vicinity Conservation Area but within the urban confines of Hythe town. The site is shown within the local plan as being within an Area of Archaeological Potential. To the south of Military Road is the Royal Military Canal, a Scheduled Ancient Monument (SAM).

3.0 RELEVANT PLANNING HISTORY

Y15/0469/SH - Section 73a application for the variation of condition 7 of planning permission Y09/0627/SH (Demolition of existing buildings, construction of a new 5573 square metre retail superstore, together with associated engineering operations, car parking, delivery yard and vehicular access) to allow one additional delivery to the service yard on Sunday between 1700 -2100 (Withdrawn 28.09.15)

Following objections from case officers and the Councillors Environmental Health Officers and reference to the appeal decision for Y10/0641/SH this application was withdrawn.

Y11/0003/NMC - Non-material change to application Y09/0627/SH - Demolition of existing buildings, construction of a new 5573 square metre retail superstore, together with associated engineering operations, car parking, delivery yard and vehicular access. (Approved 04.02.11)

Y10/0641/SH - Variation of condition 7 of Y09/0627/SH (construction of new superstore) to allow extended delivery hours on Saturdays 0800-2200 (currently restricted to 1000-2200). (Refused – appeal dismissed but condition 7 wording modified to be more precise allowing 0800 to 2240 hrs Mondays to Fridays, 1000 to 2240 hrs Saturdays, 1000 to 1740 hrs Sundays and Bank Holidays.)

Y10/0044/NMC - Non-material change to application Y09/0627/SH - Demolition of existing buildings, construction of a new 5573 square metre retail superstore, together with associated engineering operations, car parking, delivery yard and vehicular access. (Approved 19.07.10)

Y09/0627/SH - Demolition of existing buildings, construction of a new 5573 square metre retail superstore, together with associated engineering operations, car parking, delivery yard and vehicular access. (Approved 12.02.10)

4.0 CONSULTATION RESPONSES

4.1 Hythe Town Council

Support

4.2 Environment Agency

No objection subject to conditions relating to the discovery of unexpected contamination / no infiltration of surface water into the ground.

4.3 Environmental Health

With reference to this application, and the on-going correspondence with the applicant, Environmental Health objects to the granting of planning permission on the following grounds:

(1) It is not considered that this location is a suitable site. Although the conclusions of the noise assessment and lighting assessment indicate the impact will be negligible for neighbours, EH remain to have reservations as to how this transfers into practise, should permission be granted.

(2) EH do not find it acceptable for the proposed delivery times of fuel. They are very limited of when these can occur, and no alternatives have been put forward, should deliveries be delayed in their arrival to the store. Please also note, the times for delivery fall outside of those agreed for supplies to the main store. A Service Yard Management Plan was set up when Sainsburys was granted planning permission to ensure local residents would not be subject to late night deliveries. EH do not consider that the proposed petrol station should be dealt with differently, and we maintain an objection to lorries arriving on site at such late hours. It would also appear the entrance to the site is difficult for a large vehicle, and should obstructions be in their way, it may result in an additional number of manoeuvres for the driver to be in the correct position to make a fuel delivery. It is not acceptable for post installation monitoring to take place, given the ‘unknown’ factors that may affect deliveries.

(3) The height of the proposed canopy for the fuel station will be visible for the local residents to the rear of the site. A lighting report has been submitted with the application, but it fails to show the impact from the residents’ premises. The houses will be affected by the height of the canopy, and may suffer from additional lighting into their properties and garden areas. It needs to be noted here that the ground level of the residential properties is different to that for the proposed site. Also, if deliveries are made later than expected, this will have an impact as to the timings for the lighting to be reduced at the site.

If permission is granted, then consideration will need to be given to the operating times, fuel delivery times, and the use of the forecourt in respect of lighting etc.

4.4 Merebrook (Council’s contamination consultants)

I write further to your request to review the following reports:

Phase 1 Geo-environmental Desk Study by EPS (ref: UK15.1867) dated 18 September 2015; and

Fuel Storage Feasibility Assessment by EPS (ref: UK15.1867) dated 18 September 2015.

The reports have been submitted in support of an application for planning consent for change of use from a supermarket car park to a petrol filling station. The report has been considered with respect to Shepway's standard land contamination planning condition, which is typically split into five sections as set out below:

1. Desk Study and Conceptual Model.

2. Intrusive Site Investigation and Risk Assessment;

3. Remedial Strategy.

4. Verification Report.

5. Contamination Discovery Strategy.

These should be implemented in a phased manner; with each phase only required should a potential risk be identified by the preceding phase. The reports submitted are considered to be of a suitable standard and we broadly concur with the findings and recommendations.

The report concludes that there are no plausible contaminant linkages as a result of the historic use of the site.

With regard to pre-existing contamination it is considered that part 1 of the standard condition has been satisfied.

Parts 2 to 4 of the condition do not apply given the lack of identified pollutant linkages. It will however be necessary to ensure a contamination discovery strategy is in place during the works.

It has been assumed that design measures to address future risks associated with fuel storage have been considered by the Petroleum Enforcement Authority at County level and the Environment Agency. From a health protection point of view this should ensure that there is no potential for fuel vapours to enter occupied spaces.

4.5 Kent Highways and Transportation

Thank you for the consultation on the amended plans. I now have no objections to the application subject to the following conditions being attached to any planning permission granted :

1. Provision of construction vehicle loading/unloading and turning facilities prior to commencement of work on site and for the duration of construction.

2. Provision of parking facilities for site personnel and visitors prior to commencement of work on site and for the duration of construction.

3. Provision of wheel washing facilities prior to commencement of work on site and for the duration of construction.

4. Completion and maintenance of the access details shown on the submitted plans prior to petrol filling station hereby permitted being brought into use.

5. Deliveries to the petrol filling station shall only take place between the following times, 6.30 am - 7.45 am and 10.15 pm - 11 pm (Monday to Saturday) and 8 am - 9.15 am and 6.45 pm -8 pm (Sundays).

(Without these delivery hours being met KCC Highway Officers have advised they would object to the proposal for the reason that there would be conflict of delivery lorries for the proposed petrol filling station with supermarket customer traffic as the vehicle tracking shows the lorries having to straddle both lanes of the access road to the supermarket car park. Officers have advised KCC Highways that they do not consider condition 5 is enforceable)

4.6 Building Control Officer

The Latchgate condition will need to be applied.

4.7 K.C.C. (Planning - Archaeology)

No archaeological measures required.

4.8 Southern Water

No objection – require a formal application to connect to the pubic sewer.

4.9 Affinity Water

No response received

5.0 PUBLICITY

5.1 Neighbours notified by letter. Expiry date 20.11.2015

5.2 Site Notice. Expiry date 07.08.2015

5.3 Press Notice. Expiry date 13.08.2015

6.0 REPRESENTATIONS

6.1 12 letters/emails (from 9 persons) received objecting on the following grounds:

Fume pollution/poor air quality, particularly for residents of adjacent flats;

Increased noise and disturbance, particularly for residents of adjacent flats;

Loss of customer parking for supermarket will result in traffic congestion;

The proposal will result in adverse effects on emergency services; Health and safety concerns for residents in the area including

fire/explosion risk; The proposed opening and delivery hours will be above the agreed

level for the supermarket; Will result in traffic queuing back on access road and back onto

Military Road; Will result in accidents within the car park; Loss of privacy as people using petrol filling station in high vehicles

will be able to see into windows of the adjacent flats; Residents of the adjacent flats will no longer be able to enjoy the use

of the communal garden.

6.2 1 letter has been received that states they neither support nor object to the proposal.

6.3 A letter has been received from Adcock Associates on behalf of Motor Fuel Group raising that planning policy requires testing to demonstrate need and that the development would not undermine the vitality and viability of the existing town centre and the existing service station close to the site. The NPPF has an inherent concern to guard against the loss of valued facilities and services. The proposal will be disruptive to the internal flow of the supermarket car park and result in risk to pedestrians, particularly at peak times. Best practice for petrol filling station design states that the exit for delivery vehicles from the petrol filling station should avoid route conflicts - which would only be possible on this site if deliveries were to take place at night time. The proposal constitutes and over intensification of the site.

6.4 A letter has been received on behalf of Hythe Civic Society raising objection in matters of : the reduction in parking spaces for supermarket users; increased traffic on Military Road causing congestion; increased turning movements in and out of the Sainsbury’s site; difficulties for delivery vehicles to manoeuvre up the access road to the Sainsbury’s car park; additional noise for adjacent residents; adverse affects of evening opening for adjacent residents; increased difficulty for pedestrians on Military Road crossing the access road.

7.0 RELEVANT POLICY GUIDANCE

7.1 The full headings for the policies are attached to the schedule of planning matters at Appendix 1.

7.2 The following policies of the Shepway District Local Plan Review apply:

SD1, BE1, BE5, BE16, U2, U4, U10a, U15, TR11, TR13

7.3 The following policies of the Shepway Local Plan Core Strategy apply:

DSD, SS1, SS3, SS4, SS4, CSD5, CSD7

7.4 The following Supplementary Planning Documents and Government Guidance apply:

National Planning Policy FrameworkNational Planning Policy Guidance

8.0 APPRAISAL

Relevant Material Planning Considerations

8.1 Material considerations in respect to this proposal are:

- Principle;- Design;- Highway and Parking;- Neighbours’ amenities;- Archaeology;- Contamination;- Land stability- Other matters.

Principle

8.2 The NPPF’s central theme relates to the principle of principle sustainable development and the efficient use of land. Policies DSD of the Shepway Core Strategy and saved policy SD1 of the Shepway District Local Plan Review are overarching policy to deliver sustainable development. The NPPF also encourages the expansion of business sector. In this case the location of the site is considered to be broadly sustainable being close to the town centre and key transport routes and will result in an additional business element to the existing supermarket. However, this needs to be balanced against the loss of parking spaces within the store car park.

8.3 The application site falls outside the Hythe town centre and a petrol filling station does not meet the definition of a ‘main town centre use’ within the NPPF. The proposal would not result in the loss of any retail space for the

existing supermarket and therefore is not considered to affect the vitality and viability of the main town centre uses.

8.4 The NPPF makes it clear that delivering sustainable development lays at the heart of the planning system, however sustainable development itself requires securing a high quality of design and a good standard of amenity for all existing and future occupants of land and buildings.

Visual Amenity/Design & Layout

8.5 The NPPF and saved local plan policy BE1 requires new development to be of ‘high quality’. In part this requirement relates to the appearance of the development and its impact on the street scene and character of the area. Whilst accessed from Military Road and within the car park of the Sainsbury’s store the application site is set back from the established street scene, adjoining a quiet residential area to the west. The siting of the PFS, directly adjacent to the boundary of the site creates a close and conflicting arrangement with the nearby residential properties, just 9 metres to the west. Given the above the siting of the proposed PFS is considered to be poor, leading to two conflicting uses being in close proximity to each other.

8.6 The design of the development is typical for its purpose, a simple canopy structure and kiosk. The application includes little information as to the relationship between the proposed PFS and adjoining dwellings to the west, or the wider setting of the site. Due to the location of the proposed development at a higher ground level than Military Road, and being set significantly back from Military Road within the existing supermarket car park, the petrol filling station will not feature within the street scene of Military Road nor overtly in the street scene of any other bordering road.

8.7 In terms of the layout and operation, how the development would work within the setting of the wider supermarket operation and any impacts to neighbours’ amenities are considered further in the report below.

Highways and Parking

8.8 The NPPF states that development should only be prevented or refused on transport grounds where the residual cumulative impacts of the development are severe. Saved policy TR11 of the Shepway District Local Plan Review requires new accesses and intensified accesses on to the public highway to be safe for all road users and meet highway standards. Saved policy TR12 of the Shepway District Local Plan Review requires new development to meet vehicle parking standards.

8.9 In this case the access to the Petrol Filling Station site would utilise the existing, somewhat winding and steep access road from Military Road to the supermarket car park. This access road was not designed for HGV movements. Likewise the HGV movements (deliveries/collections) for the supermarket do not use the car park access as there is a separate access for these vehicles to the supermarket delivery yard via Sir John Moore

Avenue. Therefore the required exit route required for HGVs associated with the proposed petrol filling station is not straightforward.

8.10 The applicant has submitted HGV tracking plans (representing fuel delivery

vehicles) that show that HGVs are not able to come onto the site without straddling both sides of the carriageway of the access road and the tracking plans also shows that the route for those vehicles to exit the site would be a circulatory route around the internal access roads of the supermarket car park. This tracking shows a clear impediment to customer traffic for the supermarket and as such the applicant is minded that deliveries to the site will need to be outside of the hours that supermarket customer traffic uses supermarket carpark (as required by KCC Highway Officers). Whilst the applicant has confirmed that they would be willing to erect signage to ensure HGVs do not use the petrol filling station this would require Advertisment Consent and officers have concerns with regards to the over proliferation of signage along Military Road due to the visual impact. As such it is unlikely such signage would be supported, which could lead to further conflict over the use of the access.

8.11 The Kent County Council highway officers have considered the proposal and do not raise objection, however require a number of conditions including a restriction on deliveries to the petrol filling station only taking place between the following times 06.30 to 7.45 hours and 22.15 and 23.00 hours (Monday to Saturday) and 08.00 and 09.15 hours and 18.45 and 20.00 hours (Sundays). The matter of out-of-hours deliveries is considered further in the ‘Amenities’ section of this report- with respect to the impact on neighbours’ amenities.

8.12 The application proposes a loss of 41 parking spaces from the existing 264 spaces – a reduction of 15% of the car park capacity. With regard to the loss of parking spaces for the use of the supermarket shoppers the applicant has undertaken a parking accumulation survey of peak usage times of the supermarket (a Friday and Saturday in mid November) seeking to demonstrate there will remain sufficient parking spaces within the car park to cover the peak demand with a significant number of vacant spaces remaining should demand exceed the survey parking numbers.

8.13 Notwithstanding the KCC Highway officers comments, whilst this survey data identifies spaces available your officers are concerned that the data provided does not consider the use of the store at a peak period (such as the lead up to Christmas) instead just allocating a 20% uplift. Nor does the submission package identify whether the store is trading at or near to its capacity at present, nor take in to account future growth forecasts in trading. The parking survey is based solely on a 2 day period outside of peak trading times and therefore without further supporting evidence regarding the needs and use of the store is considered insufficient to justify a departure from established parking standards by reducing the size of the store car park.

8.14 During the consideration of the planning application for the supermarket in 2009 (Y09/0627/SH, report to DCC 15.12.2009) the applicants highways consultant, Meyer Brown identified that a reduced car park could lead to

unacceptable overspill parking and the backing up of vehicles on Royal Military Road and this information was used to justify the store as approved, a view supported by KCC Highways. Given the above it is considered the application fails to provide sufficient information to justify a reduction in the number of parking spaces serving the existing supermarket and as such objection is raised to the proposal currently under policy TR12 of the Shepway District Local Plan Review.

Neighbouring Amenity

8.15 The NPPF (para 17) and saved policy SD1 of the local plan requires that existing neighbours amenities are safeguarded in the light of new development. Saved policy U15 of the Shepway District Local Plan Review Seeks to ensure outdoor lighting is the minimum required and has a minimal impact on local residents.

8.16 To the rear of the application site is a high retaining wall and the residential area to the north is set at significantly higher ground level than the application site. To the east of the site is the existing supermarket car park and store. To the south is car park and Military Road carriageway. To the west of the site is the rear elevation of flats 105 to 112 Sir John Moore Avenue. These flats are two storey and face west, with bedroom and habitable room windows apparent in the rear elevation facing across a communal garden area to the east – directly towards the application site. The rear elevation of these flats are a minimum distance of about 8m from the application site, increasing to about 11.5m. It is these flats that would be most directly and significantly impacted by the proposed development.

8.17 Measures to address future risks associated with fuel storage falls under the remit of the Petroleum Enforcement Authority at County level and the Environment Agency. From a health protection point of view the control by these bodies should ensure that there is no potential for fuel vapours to enter occupied spaces. Matters of fire/explosion risk also fall outside of the remit of the Local Planning Authority and certainly it is common that petrol filling stations are located within residential areas and even adjacent to residential dwellings.

8.18 However, the relationship of the adjacent flats in Sire John Moore Avenue to the proposed petrol filling station is not considered to be a usual situation – in part due to the close proximity and orientation of the flats and in part due to operational needs of the proposed petrol filling station that are being dictated by its location within the car park of the supermarket. This has resulted in the need for fuel deliveries to take place outside of the opening hours of the supermarket. The proposed fuel delivery hours are between 0630 to 0745 hours and 2215 to 2300 hours Monday to Saturday and 0800 to 0915 hours and 1645 to 1800 on Sundays and Public Holidays. The applicant advises it is expected that there be no more than 3 deliveries per week, with each delivery taking about 30-40 minutes.

8.19 The applicant has submitted a noise assessment that concludes that the impact will be negligible for neighbours however council officers do not agree with this conclusion.

8.20 The proposed petrol filling station is a minimum distance of 8m from the rear of flats in Sir John Moore Avenue, which have bedroom and other habitable room windows facing the proposed development site.

8.21 In practise it is considered that for deliveries to commence at 6.30am this would involve the need for staff to arrive at the site prior to that time, both involving associated activity at the site - car movements, car doors slamming, perhaps conversation and the switching on of external lighting. The HGV delivery vehicles then need to negotiate the access to the site and position themselves so as to be able to deliver fuel – which as well as being lorry noise will be the potential for manoeuvring with reversing beepers, engine idling, door slamming, radio noise, conversation with filling station staff etc. Likewise disturbance would occur in the evening delivery period and whilst the applicant is minded that deliveries take place between 2215 and 2300 hours the delivery itself takes about 30 to 40 minutes – in which time staff will be in attendance, lights on, associated noise etc. Therefore if a vehicle arrives for a delivery just before 2300 hours they will be active in the site well after the 2300 closure time. Furthermore if, for example, traffic should delay a delivery vehicle will the vehicle be turned away from the site? If the vehicle arrives early there is no barrier to prevent it accessing the car park and perhaps idling until staff are ready for the delivery.

8.22 In terms of noise and disturbance it is therefore considered that the operational requirements for petrol filling station, with deliveries to the site being dictated by the need to avoid supermarket traffic in the car park, and the very close location of the site to bedroom and habitable room windows of adjacent flats, means that noise and disturbance would impact on the existing quiet residential amenity of occupiers of the adjacent flats in Sir John Moore Avenue in the early morning and later evening/night, as well as throughout the day. As such the proposal is considered unacceptable development, of significant detriment to the residential amenity of neighbouring residents.

8.23 In terms of outlook the flats in Sir John Moore Avenue would be looking directly onto the garage forecourt at minimum distances of between 8m and 11.5m. The canopy for the petrol filling station would be 4.5m high, with the depth of the canopy shade 0.5m deep. It is considered that the outlook from the rear habitable room windows of the closest flats and from the communal garden, to the rear of the flats, will be dominated by the infrastructure of the proposed petrol filling station and also with vehicles being apparent over the boundary wall/fence at close proximity and within the direct outlook from windows.

8.24 In terms of light intrusion the applicant has supplied illumination levels and spill diagrams that would show that the external lighting scheme would be installed so as not to spill significantly outside of the boundaries of the garage forecourt. The lighting will also dim automatically if there is no movement in the forecourt for 5 minutes. Notwithstanding this the illumination of the garage within the direct outlook from the adjacent flats,

and at close proximity, will add to the domination of the development within the outlook from these flats to the significant detriment of residential amenity.

8.25 The rear garden of the adjacent flats currently enjoys good levels of sunlight during the morning, with trees to the south and the flat block itself to the west causing overshadowing of this area to a significant extent from midday onwards. The height and closeness of the canopy to the communal garden will cause overshadowing of the communal garden area during the morning, which currently is the only period during the day that the garden receives direct sunlight.

8.26 In terms of privacy it has been raised by some residents that from higher vehicles using the petrol pumps they will be able to see over the boundary wall/fence directly into their bedroom and habitable room windows in the rear elevation of the adjacent flats at a close distance. This would appear to be very possible for the ground floor units and also with overlooking into the communal garden to the detriment of the amenities of the occupiers of those flats.

8.27 In summary it is apparent that the close relationship between the development site and the adjacent flats, together with the orientation of the flats blocks, is very uncomfortable and entirely unacceptable. It is considered that living conditions of the occupiers of the flats would be significantly harmed in various ways as a result of the development, as set out in the paragraphs above. It is therefore considered the proposal is contrary to saved policies SD1, BE1 and U15 of the Shepway District Local Plan Review and paragraph 17 of the NPPF, which protect residential amenity, require a high standard of design and layout and compatibility of uses and protect against unacceptable light and noise pollution.

Archaeology

8.28 Saved policy SD1 of the Shepway District Local Plan Review seeks to protect archaeological sites.

8.30 In this case an archaeological assessment has been submitted with the application and the County Archaeologist is minded that no archaeological measures would be required in this instance.

8.31 No objection is raised under the relevant part of saved policy SD1 of the Shepway District Local Plan Review.

Contamination

8.32 Saved policy U2 of the Shepway District Local Plan Review requires main drainage disposal for sewage and wastewater. Saved policy U4 of the Shepway District Local Plan Review seeks the protection of ground and surface water resources. Saved policy U10a of the Shepway District Local Plan Review requires the applicant to carry out site assessment of a site that may be contaminated and if contamination is found to be present to undertake remedial measures prior to the carrying out of the development.

8.33 In this case the applicant has submitted a Phase 1 Geo-Environmental Desk Study and a Fuel storage feasibility assessment in support of the application.

8.34 Having considered these documents the Environment Agency has no objection to the proposal subject to conditions relating to the discovery of unexpected contamination during the construction of the development and that there should be no infiltration of surface water into the ground.

8.35 Therefore, subject to suitably worded conditions no objection is raised to the proposal under saved policies U2, U4 and U10a of the Shepway District Local Plan Review.

Land Stability

8.36 Saved policy BE19 of the Shepway District Local Plan Review relates to development in areas of known land instability.

8.37 In this case the site falls within such an area but Building Control officers are minded that the use of a suitably worded planning condition would ensure the development design takes account of the inherent land instability. As such no objection is raised to the development in respect to saved policy BE19 of the Shepway District Local Plan Review.

Other Issues

8.38 It is noted on site and on the submitted layout drawing that there is a group of three trees close to but outside of the application site – to its southwestern side. These trees are within the street scene of Sir John Moore Avenue. These trees have a significant presence within that street scene and contribute to the green and pleasant character of the area.

8.39 The revised site layout drawings show some conflict of a tree canopy with the petrol filling station canopy and whilst the existing boundary wall between the car park and Sir John Moore Avenue may be acting as a root barrier to some extent, the construction of the development will require significant excavation. It is considered that, should the application be approved, details of works to reduce the tree canopy; a tree protection plan; and protection scheme to ensure the ongoing the health and vitality of this group of trees should be submitted to the LPA and agreed. Subject to a suitably worded condition no objection is raised under policy BE16 of the Shepway District Local Plan Review, which requires the protection of existing landscape features

Human Rights

8.40 In reaching a decision on a planning application the European Convention on Human Rights must be considered. The Convention Rights that are relevant are Article 8 and Article 1 of the first protocol. The proposed course of action is in accordance with domestic law. As the rights in these two articles are qualified, the Council needs to balance the rights of the

individual against the interests of society and must be satisfied that any interference with an individual’s rights is no more than necessary. Having regard to the previous paragraphs of this report, it is not considered that there is any infringement of the relevant Convention rights.

8.41 This application is reported to Committee as the Hythe Town Council support the proposal contrary to officer opinion.

9.0 SUMMARY

9.1 It is considered that the proposed Petrol Filling Station is poorly located, directly adjacent to residential properties to the west. Further, the conflict of delivery traffic for the petrol filling station with the existing supermarket traffic has meant that the delivery hours for the petrol filling station need to be outside of the opening hours of the supermarket. As a result deliveries would take place in the early morning or late evening - possibly extending past 11pm, whilst the increased concentration of activity in such close proximity to residential properties throughout the day would also be of harm to residential amenity.

9.2 In making the application it would appear that the proximity and relationship of the development site to existing residential neighbours has not been fully realised and that significant harm would result to neighbours’ living conditions in adjacent flats in Sir John Moore Avenue.

9.3 Whilst the applicant has provided survey information identifying that parking spaces are available within the car park of the Sainsbury’s supermarket no accompanying information has been provided to identify whether the store is trading at capacity nor consider anticipated growth in trading of the store. As such the Council has insufficient information to determine whether the loss of parking spaces will lead to a lack of parking spaces to serve the store in the near future. As such it has not been demonstrated that a reduction in parking spaces and a departure from adopted parking standards will not lead to future harm to highway safety.

9.4 The proposal is considered therefore to be unsustainable development, contrary to saved policies SD1, BE1, TR12 and U15 of the Shepway District Local Plan Review, The NPPF and NPPG, including paragraph 17 of the National Planning Policy Framework which seek to safeguard the amenities of neighbours to new development.

10.0 BACKGROUND DOCUMENTS

10.1 The consultation responses set out at Section 4.0 and any representations at Section 6.0 are background documents for the purposes of the Local Government Act 1972 (as amended).

RECOMMENDATION – That planning permission be refused for the following reason(s):

1. The proposed development would result in unacceptable and significant harm to the quiet residential amenity of occupiers of the flats 105 to 112 Sir John Moore Avenue due to unacceptable noise and disturbance from fuel deliveries taking place early in the morning and late in the evening/night, as well as throughout the day due to the close proximity and use of the Petrol Filling Station. The proposed development would dominate the outlook from the habitable room windows in the eastern and northern elevations of these flats and from their communal garden. The forecourt canopy would overshadow the communal garden of these flats and the occupiers of these flats would suffer a loss of privacy from occupants of high vehicles in the petrol filling station overlooking the separating boundary wall/fence into the communal garden of the flats and into the habitable rooms windows in the rear elevation of the ground floor flats. The proposal is therefore contrary to saved policy SD1, BE1 and U15 of the Shepway District Local Plan Review and paragraph 17 of the National Planning Policy Framework.

2. The applicant has failed to provide evidence that demonstrates to the satisfaction of the Local Planning Authority that the reduction in the car park by 41 parking spaces will meet the current and future needs of the Sainsbury’s superstore as no evidence as to the stores trading has been submitted alongside the weekend car park survey. As such, a reduction in parking spaces could lead to insufficient parking spaces to meet the short term and long term needs of the store, contrary to policy TR12 of the Shepway Local Plan Review which requires appropriate parking provision.

Decision of Committee