A planning application for the change of use of a previously approved store to an area where applicant could cook dry food with the intention to be sold elsewhere was turned down by the Planning Commission after the latter found that the premises were located in a residential area.

The permission was, in fact, turned down on the following basis:

1. The proposed development ran counter to the provisions of policy NHHO 01 of the North Harbour Local Plan which specifies that light industry that would result in further nuisance to neghbbours was not permitted;
2. The proposal was not in line with the SPED Urban Objective 3 which aims to protect and enhance the character and amenity of urban areas;
3. The proposal was in breach of current sanitary regulations (namely, Legal Notice 227 of 2016: Development Planning (Health and Sanitary) Regulations, 2016) since an Engineer’s Light and Ventilation Report was not submitted;

In reaction, applicant lodged an appeal with the Environment and Planning Review Tribunal, insisting that his application should have been given the green light.

In his arguments, applicant (now, appellant) highlighted the fact that the use was to remain unchanged.

Applicant went on to explain that the premises, already approved as a store having no specific designation, would still be used as a ‘food store’.

Thus, appellant insisted with the Tribunal that there was no need of a ‘change of use’ permit.

The Tribunal was reminded that appellant ‘simply wanted to be able to boil/steam vegetables’ in the kitchen and no nuisance was therefore envisaged.

For his part, the case officer representing the Authority reiterated that the premises were located in a residential area.

For this reason, Policy NHHO 01 of the North Harbours Local Plan was applicable and light industry use would only permitted when the gross floor area of the premises was less than 50sq.m.

In this case, the officer noted that the floor area was larger.

In its assessment, the Tribunal noted that appellant was correct to state that the premises were covered by an old permit to operate as a store.

Nevertheless, the Tribunal observed that the street was not committed with any commercial activity, apart from the fact that the premises were overlain by residential apartments.

The Tribunal maintained that the Authority was correct to observe that the area which was to be used as a kitchen was larger than the area which was previously designated as a store.

Against this background, the appeal was rejected since the proposal was tantamount to intensification of use.