Martin Mullaney, Councillor for Moseley & Kings Heath, Birmingham

Your Reference: MU/01774
Our Reference: S/05475/07/LBC

12th May 2008

Councillor Mullaney
Council House
Victoria Square
Birmingham
B1 1BB

Dear Councillor Mullaney,

582 Moseley Road, Moseley

I am writing in response to your letter of the 17th March 2008 regarding the 5 alleged breaches of planning at the former Tram Depot offices at 582 Moseley Road, Moseley. Can I first apologise for the delay in responding to you. For clarity I shall deal with each of the issues that you have raised in turn.

1) Advertising Hoardings to the front of the site

There is provision under the relevant Town and Country Planning (Control of Advertisements) Regulations to erect certain advertisements without the need to apply for advertisement consent. This is termed deemed consent.

An enforcement complaint was registered regarding the erection of the advertisement hoardings surrounding the Tram Depot Offices at 582 Moseley Road, on the 8th December 2005. This enforcement investigation had to consider whether these adverts required consent under the Town and Country Planning (Control of Advertisements) Regulation 1992.

Schedule 3, Class 8 of these Regulations specifies that an advertisement on a hoarding which encloses land on which building operations are taking place, or are to take place, have deemed consent if those operations are in accordance with a grant of planning permission for development primarily for commercial, industrial or business purposes.

When these advertisements were displayed in 2005, planning approval had been granted under application reference S/03789/04/FUL for the change of use of this building to offices and the erection of a rear extension with associated car parking and boundary treatment. Consent was granted for this application on 16th December 2004. As such, irrespective of the previous planning refusals for the display of advertisements on this site in a similar location, the advertisement display company, Median, had deemed consent to display these advertisements.

Schedule 3, Class 8 of these Regulations states that adverts erected under this deemed consent can be displayed for a period of up to three years. These advertisements are currently still within this time frame. This approach has been confirmed by the Chief Legal Officer.

2) Boundary Wall

There was a high wall that was attached to the rear tram building as well as a lower boundary wall to the front and side of this site. Both of these walls were damaged and either partially or totally removed without consent. Historically the more important wall section was that which was attached to the rear tram depot building. It was initially established that works had unlawfully been carried out to this boundary following an enforcement site inspection on 27th November 2003. At this time officers were unable to ascertain when the wall had been demolished and who had undertaken the demolition.

On the 24th June 2004 planning application S/03789/04/FUL was submitted for the proposed use of the front building to 582 Moseley Road as offices, with the erection of a rear extension and associated parking and boundary treatments. This application included plans, which showed details of a replacement wall to the boundary of this site. These details were assessed as acceptable and a condition was imposed on the approval that a replacement boundary wall should be erected within 6 months of the date of the approval. At this time it was considered that the imposition of this condition was a satisfactory way of achieving a replacement boundary wall to this part of the site. Subsequently it has been established that the applicant has never implemented this condition, nor have works in accordance with plans approved under application S/03789/04/FUL been fully implemented. Both of these issues have however continued to be monitored by officers.

Through continued liaison between officers and the applicant’s agent it is now apparent that it is not the intention of the applicant to further implement approved consent S/03789/04/FUL and that a new application proposing alternative details, including boundary wall details, are proposed. The Local Planning Authority is aware that plans approved under application S/03789/04/FUL are now not to be implemented. It is considered that it would not be prudent to pursue enforcement action against a breach of condition to this consent as the new application addresses this matter. In other circumstances where discussions have been ongoing and/or an application has been made, the Court has adjourned cases until the outcome of these is known.

A new detailed planning application and listed building application for the construction of 3 storey rear steel structures with patent glazing, providing additional office floor space and the removal of internal walls and raising floor at this site have now been submitted. These applications have currently not been validated as the Local Planning Authority are awaiting details of the boundary treatment and parking layout. Following the submission of this additional information, and in assessing these new applications, it would be possible to time limit the implementation of remedial works to the site including the erection of a boundary wall. If these works were not carried out in accordance with approved plans, and within the specified time frame, then enforcement action could be considered at that stage.

3) Parking

Condition B2 of application S/03789/04/FUL imposed a condition requiring that details of the car parking arrangement between the offices and the skateboard park operators were to be submitted to the Local Planning Authority for approval prior to the commencement of any works on site.

The agents for this site and the applicant’s solicitors submitted various letters seeking to discharge this condition. The main issue in relation to discharging this condition related to landownership issues, and rights of access to the site, between the owner of the tram office building and the owner of the depot building. Ownership issues are not planning considerations, and there has been some difficulty in achieving a parking layout that meets the planning objective of achieving a well laid out parking area with sufficient parking spaces for the office use, that also falls within the ownership of the applicant.

After continued discussions with the agents the Local Planning Authority agreed that a satisfactory parking layout, comprising 12 parking spaces, could be achieved on this site, and the applicant considered that such a solution would not impact on their land ownership issues. As such, the principles enabling the discharge of this condition were agreed. However, the applicants agent failed to provide an amended layout plan showing agreed parking details, and as such this condition has never been formally discharged. As the principle of a parking solution had been agreed and the site has never actually been completed and occupied as offices, enforcing against this condition not being formally discharged would not have been expedient in these circumstances.

Further, the discharging of this condition has now been overtaken by events as a new application for additional office space provision has been submitted. This application will require a new parking layout, which is to be assessed as part of this scheme and, if acceptable, will be subject to its own planning conditions.

4) Digging below the foundations of the tram offices

Application S/03384/05/FUL gave consent for the excavation of existing cellars and provision of a new cellar, beneath extensions for storage purposes.  There were no pre-commencement conditions attached to this application and so there were no planning issues raised in connection with this approval.

Your concerns raised with regard to the foundations to the site relate more directly to Building Regulations. I have contacted the officer from Building Consultancy that has been overseeing the works carried out on site. The officer has advised me that Waldron Construction Services have completed the structural work in the basement and to the ground floor to a satisfactory standard. They have not been contracted to do any further work and have left the site. Some upper floors have been constructed, but these have not been inspected due to lack of access. The new structural work is in a generally satisfactory condition. However, parts of the existing structure remain very dilapidated, particularly the concrete cantilever walkways to the rear. The site has been left in a reasonably safe condition provided the site hoarding is maintained adequately to ensure that no one can trespass on the site.

Building Consultancy’s main concern is that no clear plans or details have been submitted showing the full proposals. Therefore it remains unclear how it is proposed to comply with almost every aspect of the Building Regulations. Fire safety requirements and means of access for disabled people are a particular concern. The agent for the site has advised that further plans would be submitted when the Planning and Listed Building applications have been renegotiated.

5) Work done to the site without consent

An Enforcement Officer and Conservation Officer visited the site on 9th August 2007 to investigate works being carried out on site, and to establish whether these works were in accordance with approved planning and listed building consents for this site. From this visit it was ascertained that the works being carried out were not strictly in accordance with approved plans. The applicant was strongly advised to cease works and to submit a further application that detailed the works that they sought to carry out on site.

A listed building application, S/05475/07LBC, was submitted on 4th September 2007 and accepted on 20th September 2007.

The planning case officer and a conservation officer visited the site on the 27th September 2007 to inspect works that had been carried out against details submitted in the listed building application. Works had once again commenced on site at this stage. It was apparent during this site visit that the details submitted in the application differed from those that had been carried out on site. At this stage the conservation officer and planning case officer informed the applicant, Mr. Zaman, and his agent, on site, that carrying out works to a listed building without the necessary consent is a prosecutable offence and that all works should stop immediately. Revised plans and details should be submitted that clearly demonstrated the work that has been carried out, works that are proposed to be carried, and a clear and detailed method statement of all the works on site to ensure the integrity of this Listed Building.

Since this site visit the planning case officer and conservation officer have met with the agent for this scheme on numerous occasions to try to resolve the issues on this site and ensure the submission of full details that will enable the proposed works on this site to be properly assessed.

The new planning application and listed building application recently submitted are a direct result of continued officer liaison with the applicant’s agent to achieve a satisfactory resolution to works that have been carried out on site. These new applications, although currently invalid, do contain far more detailed information on works that have been carried out, details of remedial works to be carried out and works that are proposed to be carried out in order to provide office accommodation. As a result of the submission of these new applications application S/05475/07/LBC for the removal of the internal walls, first floor and repositioning of the staircase has now been withdrawn.

I anticipate that the further required details to enable the validation of these applications will be submitted within the next 14 days.

Conclusion

582 Moseley Road, which comprises both the Tram Depot Building and Offices to the front are Grade II Listed Buildings. In assessing any application on this site and considering how to approach breaches of planning control the most important consideration is the continued upkeep and long term use of these buildings. Both the Tram Depot and Office building have approved uses that would ensure their long-term future. In continuing to monitor this site it has become apparent that some of the conditions imposed have not been complied with and other approved details have not been implemented in accordance with approved plans. In addition, works have been carried out without consent.

As you know, enforcement action is at the discretion of the Local Planning Authority. Planning Policy Guidance Note 18 states that the Local Planning Authority must consider whether it is appropriate to take enforcement action in dealing with breaches of planning control. The test is whether the breach unacceptably affects public amenity or the existing use of the land or building meriting protection in the public interest. To date, the Department has considered that these objectives could best be achieved by continuing to negotiate and work with all the applicants and agents involved, over the entirety of this site, to ensure that these issues are resolved and that the future upkeep of these buildings is protected. This approach is supported by the Courts, should a prosecution be brought forward in respect of unauthorised works to the listed buildings. As explained above, where discussions are ongoing and/or there is a current application cases are usually adjourned until the outcome of these is known. In addition, it is likely that the Chief Legal Officer would advise against Court action in these circumstances, particularly due to the likelihood of the Council having costs awarded against it.

This has been a lengthy process but my officers continue to monitor the site and liaise with applicants and agents in order to achieve the desired outcome of a good quality scheme that retains the integrity of the listed buildings on this site.
 

Yours Sincerely

John Culligan
Acting Assistant Director of Planning Management