The proposal was turned down by the Planning Commission on the following grounds:
The proposed development ran counter to the provisions of policy NHHOOI of the North Harbours Local Plan (2006) ‘which does not list catering outlets as an acceptable use in a residential area’.
The proposal ran counter to the SPED Urban Objective 3 which aims to protect and enhance the character and amenity of urban areas;
The proposed development would create a deleterious impact on the amenity of the adjoining uses and therefore constitutes ‘bad neighbour development’;
The proposal was also in conflict with the SPED objectives TO 6.1, IJO 3.5 and I-JO 4.2.
Aggrieved by the said decision, applicant lodged an appeal before the Environment and Planning Review Tribunal, insisting that permission should have granted.
In his appeal, applicant (now, appellant) submitted the following arguments:
Contrary to what was purported by the Commission, the Local Plan provides that land-uses falling outside those mentioned in Policy NHHOOI (such as catering outlets) could be considered favourably should ‘overriding reasons to locate such uses within these areas’ subsist;
Independently of Policy NHHOOI, Policy FL-GNRLI of the Flexibility Policy ‘allows for justifiable departures from policies where proposals are deemed to be neighbour compatible and will not result in cumulative adverse impacts on the locality’.
In this case, the area was characterised by commercial development, justifying a departure from policy;
The Commission gave weight to the concerns raised by the neighbours, albeit their objections were not lodged within the statutory timeframes.
Rebutting, the case officer representing the Planning Authority pointed out that the Commission ‘had the right to refuse the application since the proposal was incompatible with planning policies’, regardless of any concerns which were raised by the objectors.
The Tribunal was reminded that ‘Policy NHHOOI and Urban Objective 3.5 of the SPED aim at controlling the proximity of non-residential uses in urban areas so as to protect the amenity of the particular context.’
In the instant case, it was pointed out that there was no apparent planning reason as to why the proposed outlet was to be located in a residential area.
In its assessment, the Tribunal saw nothing wrong in the Board’s approach in taking note of the residents’ objections. In any event, the Tribunal held that the Commission was correct to conclude that the street was not committed with similar development.
Consequently, the permit could not be granted on the basis of ‘nearby commitment’ envisaged in the Flexibility Policy.
Furthermore, the Tribunal observed that consideration had to be given to the ‘traffic and parking carrying capacity of the surrounding transportation network, neighbour compatibility issues as well as surrounding existing and planned uses’.
On account of the aforesaid, the appeal was rejected.