Revised new - M&S planning application to replace Iceland..

[KalamityKel]

edhistory Wrote:

-------------------------------------------------------

> > There are also questions over the permissions

> within the planning applications which are causing

> grumbles... with M&S passing everything over to

> their legal team this could go on for sometime!

>

> All of which M&S knew about when signing the

> lease?

much of it is claiming ignorance or passing the buck... nothing new really

[James Barber]

I've had to make 5 referrals to Southwark Council Planning Enforcement team so far. I've had my first confirmation a legal letter has been sent regarding the first.

Terribly sad use of tax payers money subsidising such a private company intent on breaking planning law. I've been truly surprised such a reputable company can be run so badly locally.

[first mate]

James,

I'd have thought the history of this development would have prepared you for yet more shoddy behaviour.

[LondonMix]

James as M&S is not the developer / freeholder, suggesting they have broken planning law seems extremely unfair. Unless you have proof that they rather than the freeholder are responsible for any violations, you may be exposing yourself to legal challenge.

Anyhow, M&S don't even benefit from the violations regarding the flats. That is entirely for the benefit of the freeholder. It would be interesting to know what the other enforceable actions relate to.

James Barber Wrote:

-------------------------------------------------------

> I've had to make 5 referrals to Southwark Council

> Planning Enforcement team so far. I've had my

> first confirmation a legal letter has been sent

> regarding the first.

>

> Terribly sad use of tax payers money subsidising

> such a private company intent on breaking planning

> law. I've been truly surprised such a reputable

> company can be run so badly locally.

[nxjen]

Perhaps James is referring to the delivery lorries parked on Lordship Lane on the zigzag lines and double yellow lines. To be fair, Iceland's delivery lorries also parked on Lordship Lane but more outside the post office so did not straddle the double yellows or zigzag lines.

[first mate]

LM,

If I have understood, there were conditions of access to the service area, times, frequency, noise levels, which bits of road to use etc.. that were applied to the retailer, in this case M&S. It seems some of those conditions are not being adhered to.

[LondonMix]

Thanks first mate-- it would be good to see a list of the infractions from James. I've only heard of two: the positioning of certain plant equipment (which is causing noise) and the height of the residential units, both of which apply to the freeholder.

What were the service and delivery conditions set out in the planning application? On one of the (many) other M&S threads, someone who lives on a neighboring street mentioned that residents were working on something around that with the store and thought they were close to a workable arrangement but I have no idea regarding the specifics.

[Cardelia]

There was a 3.5 ton delivery lorry parked in the bus lane outside M&S around 8:30 this morning. I don't think it was straddling the white zigzags but it wasn't clear from my point of view. Depending on what the bus lane restrictions and loading restrictions are at that point of Lordship Lane, there's a good chance it was illegally parked.

[Charlie Smith]

84-90 Lordship Lane has been a long and drawn out saga. One of the original planning applications was for 8 office units. I don't think anyone believed this at the time. Low and behold the application changed to 8 flats. This was duly granted with a number of provisions such as deliveries etc. Then another floor appeared at the top of the building with an application for a walkway and 2 more flats. I queried this with officers as now there would be a total of 10 units on this development which would mean the developer had to supply a percentage of social housing or pay Section 106 monies towards some social project in the area. After I queried this I received an answer from officers. It seems that this year the Court of Appeal gave this judgement in the case of the Secretary of State for Communities and Local Government V Berkshire District Council and Reading Borough Council. The threshold has now been increased from 10 to 11 units on a development before a developer is required to provide any social housing or Section 106 monies. If in the unlikely event that the developer were to increase the number of units on this site, then a proportion of social housing would have to be included.

I hope this has been helpful.

Councillor Charlie Smith

Labour Councillor For the East Dulwich Ward.

[LondonMix]

Thanks Charlie-- do you know what the planning violations are that James mentioned above?

I'm surprised that court of appeal can set new planning policy as the 10 unit guideline exists in law.

[AbDabs]

The court of appeal wouldn't set policy, merely clarify the law as it stands. It's a while since I've read it (so please correct) but my memory is that it says 'ten or fewer are excluded'

[first mate]

So how was the threshold from 10 to 11 units changed, by the appeal process or prior to that....confused?

[MarkT]

The Appeal case was in Reading. Maybe the wording of Reading and Berkshire policies was open to interpretation.

If they use the word "threshold" for example, this could be open to interpretation. Does a rule apply at the threshold or at 1 more than the threshold?

Southwark's Affordable Housing Supplementary Planning Document Draft 2011 states that, apart from a few bits in the north of the Borough, all developments of 10 or more units must include 35% affordable housing. Southwark's website doesn't indicate any more recent policy.

"10 or more" seems clear enough to me. The rule applies to a development of 10 units.

I haven't checked out the London Plan on this matter, but the Dept of Environment website shows the current national rules: Draft Planning Policy Statement 22 - Affordable Housing Policy AH1 "for all development applications containing 5 units or more on sites outside land zoned for social housing the planning authority will seek the provision of affordable housing and/or commuted sums..."

Repeat: 5 units or more.

The issue in this specific case is that the developer never applied for 10 units. Having got permission for change of offices to 8 dwelling units on the existing 2 floors, the developer then made a separate application for 2 dwelling units on the roof, showing the existing 2 floors as offices.

Southwark Council did not decide the application within the prescibed time limit, so the applicant appealed against non determination and, before the appeal was heard, Southwark officers approved the application, ignoring loads of well argued objections. Officers, on delegated powers, could have refused it, but under Southwark Council's Constitution, with so many objections, the decision to approve should have been taken by Councillors, not officers.

Objectors had pointed that the additional floor was higher than was permitted by policy; that 8 + 2 = 10, so the development must therefore include 35% affordable housing and that the Council has a specific policy to refuse applications that appear to be attempting to circumvent the affordable housing requirement.

The offices are now being sold as flats. 10 in total, none affordable, and the building is a floor above the permitted height.

[MarkT]

Here's the Court record of the Reading Appeal:

http://www.bailii.org/ew/cases/EWCA/Civ/2016/441.html

The policy in question is described in the first witness statement:

2(1) "Developments of 10 units or 1000 sq m or less (including annexes and extensions) would be excluded from affordable housing levies and tariff based contributions;"

Is that an accurate record of Reading's policy or is it a verbal description of the policy as presented in court and interpreted by the judge? Excluding 10 units or less is not the same as including 10 or more. Southwark's policy, by comparison, requires affordable housing for 10 units or more, ie excludes 9 units or less

I have not examined this court ruling, but it seems to me that the issue considered is whether the threshold, per se, is fair to small developers, and the appropriateness of a blanket threshold. I don't think that it determines that the threshold should be 11 rather than 10.

MarkT

[AbDabs]

Mark - it's a long time since I looked at this but finally found it. The court of appeal was deciding a judicial review of the restrictions imposed by the Housing Minister's statement November 14. Reading's policy (the bit you quoted above was government policy, not Reading) did not comply with that so Reading was trying to get the Minister's requirements deemed unlawful. They failed.

So the requirements of the November 14 statement are law and override Southwark's policy. The statement says

'the Government is making the following changes to national policy with regard to Section 106 planning obligations:

? Due to the disproportionate burden of developer contributions on small scale developers, for

sites of 10-units or less, and which have a maximum combined gross floor space of 1,000 square

metres, affordable housing and tariff style contributions should not be sought.'

[LondonMix]

Thanks Abdas, that's very helpful

Can anyone outline what the various other planning infractions might be?

[first mate]

LM,

Look at the other MS thread and Sidhue's comments on servicing agreements etc..

Whilst it may not be an infraction of planning law per se, I suspect that conditions of the servicing agreement are not being met. So I get what James means, and although his wording may not be completely accurate it is still shoddy behaviour by the retailer. I cannot honestly believe that they have been oblivious to the whole planning saga attached to this site, or that they have only just 'discovered' the service entrance and area is not fit for purpose.

[Dogkennelhillbilly]

On one of the

> (many) other M&S threads, someone who lives on a

> neighboring street mentioned that residents were

> working on something around that with the store

> and thought they were close to a workable

> arrangement but I have no idea regarding the

> specifics.

Residents on the Grove will want the trucks on Lordship Lane. The residents can't make M and S comply with the law or make an agreement that works for everyone. That's what local government is supposed to do.

[first mate]

Quite.

[James Barber]

Infractions are:

Not following the shop serving plan.

Not keeping to the permitted opening hours.

Not keeping to the agree drawings of the frontage - those massive numerals, the plastic backing to the windows effectively creating a visual wall.

Noise form plant contrary to planning conditions.

Building the top storey too high.

All bar the last condition are the responsibility of M&S. 'Not just any kind of planning breach... but an M&S planning breach'.

Cllr Charlie Smith commented earlier. The 8 x flats were proposed first. Then they thought to add 2 x penthouse flats which would have take it to 10 flats and potentially 35% social housing so they re applied for the 8 flats to be work units each with a bathroom and show room and kitchen. Once the 2 penthouses built they'll claim no business wanted to rent the work spaces and will used permitted development after two years of non occupation to convert them into flats. The chronology is critical to get away with this abuse of process.

[edhistory]

The new ground floor footprint is interesting too.

[Abe_froeman]

The council granted permission to convert the offices to flats some time ago. I don't believe they need to make any claim about rent or otherwise. The 8 flats and 2 penthouses are already for sale as residential units with Winkworth and KFH.

It's completely out of the council's hands now.

[LondonMix]

James, neither numerals or the plant would be the responsibility of the tenant. Both of those would be the freeholder.

What are the opening hours supposed to be and are M&S regularly opening beyond them or are you talking about a single infraction? That would be quite a significant condition to break if your suggesting its an ongoing issue.

Also, what do you mean the serving plan--is that a typo? Do you mean the surviving agreement? What's the nature of the breech?

Thanks,

LM

James Barber Wrote:

-------------------------------------------------------

> Infractions are:

> Not following the shop serving plan.

> Not keeping to the permitted opening hours.

> Not keeping to the agree drawings of the frontage

> - those massive numerals, the plastic backing to

> the windows effectively creating a visual wall.

> Noise form plant contrary to planning conditions.

> Building the top storey too high.

> All bar the last condition are the responsibility

> of M&S. 'Not just any kind of planning breach...

> but an M&S planning breach'.

>

> Cllr Charlie Smith commented earlier. The 8 x

> flats were proposed first. Then they thought to

> add 2 x penthouse flats which would have take it

> to 10 flats and potentially 35% social housing so

> they re applied for the 8 flats to be work units

> each with a bathroom and show room and kitchen.

> Once the 2 penthouses built they'll claim no

> business wanted to rent the work spaces and will

> used permitted development after two years of non

> occupation to convert them into flats. The

> chronology is critical to get away with this abuse

> of process.

[first mate]

I think James might mean the servicing plan/agreement.

[LondonMix]

Ah, yes, that makes more sense.