The board had held that the scale of the existing retail outlet was deemed to be excessive and therefore unacceptable. In addition, the proposal was considered to ‘impose a deleterious impact on the amenity of the area and of existing and planned adjoining uses’, hence in conflict with both Structure Plan policy BEN 1 and policy NHHO 02 of the North Harbour Local Plan.
Moreover, the proposal went against PA circular 3/93 which seeks to ensure that appropriate provision is made for off-street parking. In this case, the board was of the opinion that the premises were inadequate in terms of parking capacity. Additionally, the board ruled that canopies were only permitted in town centres, entertainment priority areas or tourism zones. The board also expressed concern with regard to the height of the front garden boundary wall, stating that it ‘detracted from the characteristics of the streetscape’.
Aggrieved by this decision, applicant lodged an appeal with the Environment and Planning Tribunal. In his submissions, the applicant argued that a permit was issued in the immediate vicinity for the ‘change of use from approved semi-basement garage to shop’. The applicant contended that his shop measured a floor area of 67 square metres, hence ‘smaller than the maximum permitted area for such a use’, namely 75 square metres. The tribunal was requested to note that the premises in question had been operating for more than 10 years and ‘no increase of visual intrusion, noise, vibration, atmospheric pollution or unusually high traffic generation’ was therefore envisaged.
The applicant went on to highlight that there is a continued demand for new and expanded convenience shopping in villa areas as this would reduce the need for residents to travel by car. As for the required parking spaces, it was held that no additional parking spaces were necessary ‘since the car parking spaces in front of the garages being sanctioned should suffice’. As a final point, the applicant stated that he had already signalled his intentions to have the canopies removed.
In reply, the case officer observed that the illegal commercial operations were still ongoing, as a result of which, the applicant’s decision should be dismissed forthwith. The tribunal was reminded that the applicant had extended the permitted commercial area by 50 square metres.
In its assessment, the tribunal noted that the premises were located in a residential priority area, where commercial activity is by way of principle prohibited. More so, the tribunal observed that the illegal activity had persisted during the course of the appeal proceedings. To this end, reference was made to Article 86 (10) of Chapter 504 which states that ‘Any application to regularise an activity or a development shall be dismissed forthwith if a requirement in the order or notice stopping or prohibiting further activity, work or development, or requiring the cessation of a use, has not, both prior or during the pendency of the application, been complied with.’ Against this background, the appeal was rejected.