Report to: Planning Committee, 22nd September 2016
Report of: Corporate Director - Place
Subject:
P16D0391 – PROPOSED CHANGE OF USE OF RAILWAY ARCH FROM
CLASS B1/B2/B8 USE TO CLASS A3 RESTAURANT AT RAILWAY ARCH
No.46, CHERRY TREE WALK
1.
Recommendation
1.1
The Corporate Director - Place recommends that the Planning Committee
grant planning permission, subject to the conditions set out in the plans list.
2.
Background
2.1
The viaduct was constructed as part of the Worcester & Hereford Railway, which was
authorised by Act of Parliament in 1853; the contractors were the railway engineer
and contractor Thomas Brassey and Stephen Ballard of Colwall. The line opened in
four stages from 1859 to 1861: 
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Henwick to Malvern Link – 25 July 1859;
Henwick to Worcester Shrub Hill (including Worcester Foregate Street Station) –
17 May 1860;
Great Malvern to Malvern Wells – 25 May 1860, and;
Malvern Wells to Shelwick Junction (Hereford) – 17 September 1861.
The Worcester & Hereford Railway became part of the West Midland Railway on 1
July 1861 and the Great Western Railway on 1 August 1863.
2.2
Changes have been made to the railway viaduct’s arches in two phases during the
1990s. Under permission granted against P89C0322 on 31 October 1991 the British
Railways Board constructed a new road between Infirmary Walk and Farrier Street,
which became known as Cherry Tree Walk, and refurbished fourteen of the viaduct’s
arches (44-51 and 53-56 and 60-61) for Class B use for vehicle repairs, and a
further three arches (57, 58 and 59) for car parking. Later, under permission
granted against P98L0416 on 11 February 1999, Railtrack plc made alterations to
and refurbished arches 44-51, which included the addition of the enclosures seen
there today.
3.
The Site and Surrounding Area
3.1
The application site is part of a locally listed railway viaduct and is situated within
the Historic City Conservation Area. There are no statutorily listed buildings in the
immediate vicinity; the nearest other listed buildings being The Paul Pry public
house, The Butts; Bank House, Shaw Street, and Worcester Royal Infirmary, Castle
Street & Infirmary Walk; all of which are grade II.
3.2
There are two sets of sheltered housing for the elderly in the vicinity of the site.
Immediately north of the application site stands Nos.1-10 Walsgrove Court, erected
between 1965 and 1970, and to the south, a little more remotely, stands Nos.3-13
Alderman Lea’s Almshouses erected in 1964; neither are listed.
4.
The Proposal
4.1
Planning permission is sought for a change of use of a vacant unit within Arch 46 of
the railway viaduct through Cherry Tree Walk to a Class A3 restaurant use.
4.2
The proposed conversion is anticipated to create 13 full-time equivalent posts and it
is stated that the business would source its organic ingredients from local suppliers.
4.3
The restaurant interior space would seat up to 60 patrons and patron turn-around is
anticipated at 120 per day with peak numbers around 300 per day.
4.4
The proposal is to be considered within the context of Network Rail’s programme to
maintain and upgrade its assets. The current proposal is hoped to be the first in a
series of upgrades of Worcester’s railway arches that will both protect them as part
of Worcester’s heritage and also raise the social and economic quality of the area by
bringing the units into retail/restaurant use.
4.5
This proposal has the potential to be a catalyst for the regeneration of this slightly
bleak area, in particular through tourism and by attracting further retailers into what
could become a vibrant area in the future.
4.6
The application is accompanied by a detailed set of plans together with a Design and
Access Statement as well as a supporting statement from the applicant explaining
the ethos behind the business.
5.
Planning Policy
5.1
The Town and Country Planning Act 1990 (‘the Act’) establishes the legislative
framework for consideration of this application. Section 70(2) of the Act requires the
decision-maker in determining planning applications/appeals to have regard to the
Development Plan, insofar as it is material to the application/appeal, and to any
other material consideration. Where the Development Plan is material to the
development proposal it must therefore be taken into account. Section 38(6) of the
Planning and Compulsory Purchase Act 2004 requires the application/appeal to be
determined in accordance with the Plan, unless material considerations indicate
otherwise.
5.2
The Development Plan for Worcester now comprises:
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5.3
The South Worcestershire Development Plan (SWDP) which was adopted on 25
February 2016
The Worcestershire Waste Core Strategy, which was adopted in December 2012
The saved policies of the County of Hereford and Worcester Minerals Local Plan,
which was adopted in April 1997.
The following policies of the SWDP are considered to be relevant to the proposal:
SWDP 1
SWDP 3
SWDP 5
Overarching Sustainable Development Principles
Employment, Housing and Retail Provision
Green Infrastructure
SWDP
SWDP
SWDP
SWDP
SWDP
6
8
9
21
24
Historic Environment
Providing the Right Land for Buildings and Jobs
Sustaining and Creating Vibrant Centres
Design
Management of the Historic Environment
National Guidance
5.4
The following national guidance are considered to be relevant to the proposal:
National Planning Policy Framework (NPPF) which outline a series of considerations
against which delivering sustainable development should be assessed. Paragraph
186 of the NPPF encourages Local Planning Authorities to approach decision taking in
a positive way and to foster the delivery of sustainable development. LPAs are
advised at paragraph 187 of the NPPF to look for solutions rather than problems and
decision-takers are asked to approve applications for sustainable development where
possible.
National Planning Practice Guidance (NPPG) which amongst other matters considers:
Design, Housing Availability, Natural Environment, Viability and Use of Planning
Conditions.
6.
Planning History
6.1
There have been ten planning applications against these arches between 1967 and
2012, comprising:
7.
7.1
P12D0515 – Arch 49: Change of use from B1 (Light Industrial) to B2 (Micro
Brewery) – approved 15 February 2013
 P98L0416 – Arches 44-51: Alterations and refurbishment – approved 11 February
1999
 P95L0256 – Arch 49: Change of use of vacant railway arch to bar and
discotheque – approved 28 September 1995
 P90C0547 – Arch 51: Construction of temporary enclosure – approved 13
November 1990
 P89C0322 – Arches 44-51 and 53-56 and 60-61: Refurbishment for B1 and B8
use for vehicle repairs, and car parking in Arches 57, 58 and 59, together with
the construction of a new road between Infirmary Walk and Farrier Street –
approved 31 October 1991
 79/0659 – Arch 47: Change of use from storage to general motor repairs –
approved 06 July 1979
 76/0252 – Arch 47: Continued use for storage of building materials and lock-up
for van – approved 23 April 1976
 72/1584 – Arch 47: The enclosure of an open arch to form a storage area –
approved 15 December 1972
 71/0959 – Arch 47: Use for motor vehicle mechanical repairs by enclosing the
ends – approved 01 October 1971
 67/089 – Arch 60: Use of for light industry – approved 17 February 1967
Consultations
Formal consultation, including display of site notices, has been undertaken in respect
of the application. The following comments from statutory and non-statutory
consultees have been received in relation to the proposals:-
Highway Authority: State that the proposed development is in a highly sustainable
location and they have no objection from a highways point of view.
Worcester City Council Planning Policy: State that the proposal would result in
the loss of a B1 employment use to an A3 café/restaurant use. However, the total
net floor space of the site is less than 1,000sqm and would therefore not contravene
policy SWDP 8: Providing the Right Land and Building for Jobs. The scheme would be
supporting a new enterprise and will create job opportunities for full and part-time
staff. Provided that the proposal meets the criteria set out in SWDP policies SWDP
21: Design, including the relationship of the proposal with the surrounding
environment and SWDP 24: Management of the Historic Environment, there is no
objection in principle.
Worcestershire Regulatory Services: Require full details of the proposed kitchen
extraction system, including noise and odour minimisation measures, to be
submitted. The final opening of the external extract flue should exhaust vertically
and consideration should be given to installing a velocity cone. The applicant should
also state the calculated dwell time if a carbon filter is to be utilised.
West Mercia Constabulary, Divisional Crime Risk Manager: Has no objection in
principal, subject to hours of operation condition limiting opening hours to not go
beyond 2330hrs any day of the week.
Neighbours: The application has raised five comments from local residents with
regard to:
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The playing of loud music
Disturbance from outside dining
Problems associated with additional parking
Deliveries
Odours and smells
Waste
Pest Control
Hours of operation
7.2
Any additional responses received will be reported to members in the form of a late
paper.
7.3
In assessing the proposal due regard has been given to local residents comments as
material planning considerations. Nevertheless, I am also mindful that decisions
should not be made solely on the basis of the number of representations, whether
they are for or against a proposal. The Localism Act has not changed this, nor has it
changed the advice that local opposition or support for a proposal is not in itself a
ground for refusing or granting planning permission unless it is founded on valid
planning reasons.
8.
Comments of Corporate Director - Place
8.1
Following comprehensive site visits in and around the application site and
assessment of the submitted plans and documents, I consider the main issues in the
determination of this application to be the: Principle of proposed development
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Impact on historic assets
Amenity of adjoining land users
Standards of amenity proposed for future occupants
Highway safety and access
Landscaping
Sustainability
This report will now consider each of these issues in turn.
The principle of the proposed development
8.2
The planning history of the site shows a continuity of varied uses being made of the
arches beneath this viaduct; something encouraged by its successive owners.
Indeed, at either end of the 1990s both the British Railways Board and Railtrack plc
made considerable investment in the upkeep and adaptation of the arches to foster
their commercial and light industrial use, evidence of which goes back 50 years or
more. Of the ten planning applications made against these arches, four relate to
Arch 47, the one adjoining the application site, which has seen use for storage,
including of building materials, and twice for motor vehicle repairs. Two units along,
Arch 49 has enjoyed use as a bar and discotheque, and more recently an on-going
use as a micro brewery. Both of these set a precedent for uses inside the viaduct
arches with levels of concomitant noise, activity, deliveries and controlled ‘nuisance’
which were found in practice to be acceptable.
8.3
Under the provisions of the Town & Country Planning (General Permitted
Development) (England) Order 2015 (as amended), which came into force on 6 April
2016, a change of use from B1 (business) to A3 (restaurants and cafés) is permitted
for a single continuous period of up to 2 years beginning on the date the building
and any land within its curtilage begins to be used for the flexible use or on the date
given in under notice, whichever is the earlier. However, prior approval is required in
respect of matters relating to noise, odour, waste collection, impact of the hours of
opening, transport and highways impact, impact on existing shopping provision, and
the design of any external changes. Therefore, apart from the latter, the type of
change of use proposed in this application is regarded as a form of time-limited
permitted development.
The impact of the proposal on historic assets
8.4
As noted above, there are no listed buildings in the immediate vicinity of the
application site and no inter-visibility between it and the nearest other listed
buildings. Now 156 years old, the railway viaduct itself is a historic structure and
included upon the Council’s list of locally important buildings; therefore the impact of
the proposals upon it is also a matter to be considered. The alteration and
refurbishment works undertaken to the viaduct by Railtrack plc in the late 1990s is
now looking rather tired and dated; as a consequence the proposed replacement
arch infilling is a welcome addition. No alterations are to be made to the historic
fabric that forms the arch. Inserted later block-work will be removed and the present
steel lining to the arch modified in forming the new frontage and within constraints
set by Network Rail. The Applicant has also been advised that a condition of the
lease stipulates that the background structure of the arch is to remain accessible for
inspection. Network Rail – both the viaduct’s owners and the applicant’s landlords –
are fully supportive of the present proposals. Inspections occur approximately every
10 years. This requires that the interior fittings be movable. One consequence of this
therefore is that the changes proposed in this application will be reversible.
8.5
The Council’s Archaeological Officer has commented that the archaeological
potential of this area is well known from a number of interventions in recent
years. This includes a Roman road, and remains of Roman occupation and
industry, as well as later remains including Civil War defences. Similar remains
have also been found at other locations below the viaduct. These concerns have
been reflected in the conditions placed upon this consent. Therefore, I am
satisfied overall that the proposed changes will not impact adversely upon either
the surrounding conservation area; the nearest listed buildings, or the fabric of
the railway viaduct itself.
The impact of the proposal on the amenity of adjoining land users
8.6
Five comments containing concerns and raising objections have been received
from local residents. These concerns can be summarised as follows: 
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8.7
The playing of loud music
Disturbance from outside dining
Problems associated with additional parking
Deliveries
Odours and smells
Waste
Pest Control
These points were relayed to the applicants who have replied addressing each of
them in turn as follows: 
The playing of loud music - Music will be only played on an internal sound system
as a background. There will be no live music played inside or music of any kind
played outside of Arch 46.

Disturbance from outside dining - There will be no tables located outside of the
Arch 46 to begin with; therefore no outside dining. The exterior will be
landscaped to make it more inviting and aesthetically pleasing.

Problems associated with additional parking - The parking spaces located at the
front of Arch 46 will be converted into an entrance with greenery and appropriate
lighting. By doing so, this will further identify the parking spaces for Arch 47 next
door, making it easier for the customers using that unit. Additional signage may
be put in place once the restaurant opens further to allay Arch 47’s parking
concerns. Staff and customer parking have never been provided parking at either
of the applicants’ current establishments and they propose to follow suit in
Worcester. With various car parks scattered around the city centre, Arch 46 will
be a short walk for staff and customers to get to by foot. Somewhere for staff to
store their bikes during their shift will be provided in Arch 44.

Deliveries - Arch 44 will be primarily used for deliveries. As all of the producers to
be used are small, vehicles will be able to reverse into Arch 44 to unload.

Odours and smells - Proper ventilation systems will be installed. Worcestershire
Regulatory Services has already been consulted about the site to ensure that
minimal odours and smells will affect those surrounding Arch 46. They have
commented that full details of the proposed kitchen extraction system, including
noise and odour minimisation measures, should be submitted, and that the final
opening of the external extract flue should exhaust vertically, and that
consideration should be given to installing a velocity cone. The applicants should
also state the calculated dwell time if a carbon filter is to be utilised. These
matters will be covered by condition. The applicant’s also state that their current
‘Burger Shop’ in Hereford is beside a fabric shop and that its owners have never
complained about the smells affecting either their business or stock.
8.8

Waste - Waste will be stored at the rear of Arch 44 and collected from the front of
that arch on collection days to minimise collection time. Recycling will also be
collected from the front of Arch 44. The applicants currently use an
environmentally friendly bike service in Hereford for the pick up of cardboard and
paper and have undertaken to do the same in Worcester.

Pest control - There have been no issues regarding pest control at the applicant’s
Hereford premises, but they state that they will perform monthly checks to
ensure that no issues occur. Regular garbage and litter pick-up, and thorough
daily cleaning, will be performed to ensure that a minimum of waste is stored in
bins over a long period of time.

Hours of operation - Neighbours have also pointed out that a discrepancy exists
between the hours of operation stated in the submitted Design & Access
Statement and those stated on the application form. This relates to the time of
closure. Clarification has been sought from the applicants on this matter and from
this it is clear that the times stated on the application form are their preferred
ones. These times have also been defined by condition.
Therefore, overall, I consider that the impact of the proposal on the amenity of
adjoining land users has been fully considered and addressed, and that this is
acceptable. In addition, it has also to be borne in mind that other arches beneath
this railway viaduct are in commercial/light industrial use with their associated
collections, deliveries, visitors and noise. Finally too, Arch 46 is beneath a working
railway viaduct, over which Network Rail data shows that on weekdays, between the
proposed hours of opening – 12:00 to 23:00 – a total of 83 trains pass over. Against
these accustomed levels of activity and noise therefore, I do not consider that any
likely additional increase in these arising from the proposed use of Arch 46 will have
a significant impact up on the amenity of adjoining land users.
Standards of amenity proposed for future occupants
8.9
I consider that the refurbishment and investment proposed in this application will be
of benefit to both the proposed and any future occupants of Arch 46.
The impact of the proposal on highway safety and access
8.10
Little if any change is proposed with regard to highway safety and access. The
applicants have never provided parking at any of their existing establishments and
propose to follow suit in Worcester. They consider that there are various car parks
around the city centre, and that Arch 46 is a short walk for staff and customers to
get to by foot. They are also taking on Arch 44 which will allow for limited staff
parking, deliveries and somewhere for secure staff bicycle storage during their shifts.
The existing pair of parking spaces in front of Arch 46 will be converted into an
entrance with greenery and appropriate forms and levels of lighting. This will also
address concerns over parking raised by the current occupants of Arch 47 next door
by further identifying the latter’s parking spaces, making things easier for their
customers. Once the restaurant has opened the applicants have also stated their
willingness to provide additional signage to emphasise the neighbour’s parking
spaces.
8.11
Four other objectors, all adjacent residents, have raised concerns with regard to
parking and I have taken these concerns into account in my assessment of the
proposals. Overall, one either accepts or refutes the applicant’s ‘no parking provided’
stance. On balance, I do accept it. There is little or no parking possible at or around
the application site, and any additional parking arising from the proposed use of Arch
46 would be unauthorised and enforceable against. Also, the existing uses to which
the other arches are already put require parking and deliveries, so it is not as though
these are unknown occurrences.
8.12
With regard to access, entry to the proposed ‘Burger Bar’ will be via a new on the
level entrance, which will be fully compliant with the requirements of the Equality Act
(2010), and disabled toilet facilities will be provided inside the converted arch.
8.13
The Highway Authority has expressed no objection to the proposals, stating that: ‘the proposed development is in a highly sustainable location…’. Therefore, on
balance, I acknowledge the concerns raised over vehicles and parking, but consider
that these have been successfully addressed by the applicants. As a result I consider
the impact of the proposal upon highway safety and access to be acceptable.
Landscaping
8.14
There is very limited scope for landscaping at the application site. The applicants
state that they will be converting the existing car parking in front of Arch 46: - ‘into
an entrance with greenery and appropriate forms and levels of lighting… to make it
more inviting and aesthetically pleasing’. However, no details of this are provided
and will therefore be required by condition. On this basis I am satisfied with the level
of consideration and provision which landscaping requires as part of this application.
Sustainability
8.15
The applicants propose to use locally sourced organic food and seasonal ingredients,
free of contaminants, which will both aid the local economy and reduce their carbon
footprint. When open the proposed Burger Bar will create ten full time jobs and eight
part-time ones – the equivalent of thirteen full-time posts. Three of the statutory
consultees have also commented that they regard these proposals as being
sustainable:  County Highways remarked that the: - ‘proposed development is in a highly
sustainable location…’;
 Network Rail said that the change the use of this arch:- ‘will be a significant
benefit to the future regeneration and vibrancy of this area… (and) … will help to
ensure that there is a sustainable mix of businesses in this area which will in turn
ensure long term occupancy is maintained in the future’, and;
 Planning Policy noted that the proposal: - ‘would be supporting a new enterprise
and will create job opportunities’.
Conclusion
8.16
I acknowledge all comments received as part of the consultation process and
consider all material planning issues have been considered including those of the
NPPF including economic, environmental and social, as well as diversity, in the
determination of this application. Further, I also consider that the concerns raised
with regard to this application have been to the generality of what is proposed and
that these are mitigated once the detail and specifics of the proposals are fully taken
into account and consideration is given to the existing nature and uses to which the
broader site is both put and subject to.
8.17
In general I consider that the level of alteration proposed to the application buildings
is acceptable and will not result in harm to the setting of adjacent listed buildings.
Therefore, on balance, taking the material planning merits of the scheme into
consideration, I consider that the proposal is acceptable in principle and the site has
adequate capacity to accommodate the proposed development in an acceptable
manner in terms of its impact as assessed above in accordance with the aims and
interests that the South Worcestershire Development Plan and the National Planning
Policy Framework seek to protect and promote in this regard.
Ward(s):
Contact Officer:
Background Papers:
Cathedral
Paul Collins – Tel: 01905 722129
Email: [email protected]
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